BHAGWANDAS KANHAIYALAL BUBNA Vs. SHYAMSHUNDER WASUDEO BUBNA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.

(2.) The petitioner is the original plaintiff. The suit had been filed by the plaintiff for permanent and mandatory injunction restraining the respondents/original defendants from making any construction in the space between two Samadhis of their common ancestors and for removal of the construction they had already made. The respondents filed written statement and denied the claim of the petitioner. It was pleaded by the defendant that the Samadhi was admeasuring 20 ft. x 50 ft. and the possession of the land between the two Samadhis was not passed on to the petitioner at any point of time. Issues were framed and the matter proceeded for tendering of evidence of the plaintiff. At this juncture, the plaintiff filed an application for amendment of the plaint under Order 6, Rule 17 of the Code of Civil Procedure. By the proposed amendment, the petitioner desired to explain some of the pleadings in the plaint in view of the objection raised by the defendant in the written statement. The amendment application was however, dismissed by the trial court only on the ground that the matter was posted for evidence and the application for amendment could not have been filed at that juncture. The order dated 3.3.2009 is impugned by the petitioner by filing the instant petition.

(3.) Shri. V. R. Mundra, the learned counsel for the petitioner submitted that it was necessary for the trial court to allow the amendment application in the facts and circumstances of the case, as the plaintiff merely desired to elaborately describe the suit property and the construction which was made by the respondent on the same. It is submitted on behalf of the petitioner that the trial did not commence in this case as the parties had not tendered any evidence, though the matter was fixed for tendering the evidence. The learned counsel for the petitioner submitted that filing of affidavit in lieu of the examination-in-chief is held to be a stage of commencement of proceedings. The learned counsel for the petitioner relied on the decision reported in 2009 ALL MR Page 471 to substantiate his submission. The learned counsel for the petitioner submitted that rejection of the amendment application would cause further complications in the execution proceedings if the suit of the plaintiff is decreed.